TMI Blog2017 (10) TMI 1237X X X X Extracts X X X X X X X X Extracts X X X X ..... ile of AO with the direction to allow the assessee to explain about the seizure of cash and jewellery. On the other hand, the ld. DR for the Revenue supported the order of authorities below and would argue that the assessee has not appeared before the AO on a number of appointed dates and asked for adjournment. The assessee started to appear at the fag end of the year when the time period for passing the assessment order was knocking. However, on our specific query, the ld. DR for the Revenue agreed that he has no objection, if the grounds of appeal are restored to the file of AO. However, it was prayed that assessee be directed to fully co-operate and to provide the full detail and not to drag the proceeding unnecessary. Considering the contention of both the parties, the ground no.1 &2 are restored to the file of AO to decide both the ground afresh in accordance with law. The assessee is directed to provide full detail and information which may be required by AO and not to take the adjournment without legitimate ground. - ITA No. 3838/Mum/2013 - - - Dated:- 18-10-2017 - Shri R. C. Sharma, Accountant Member And Shri Pawan Singh, Judicial Member Assessee by : Shri. Vimal Pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d CIT (A) made addition on account of unexplained investment u/s 69, without appreciating that above jewellery is recorded in books and sec.69 applies only when investment is not recorded in books of account. d. On the facts and in circumstances of the case, the said disallowance were unjustified and unwarranted. 4. The assessee prays that the said addition of ₹ 18,15,390/- be deleted GROUND NO. 3 1. The Ld. CIT(A) has erred in treating the genuine creditors as bogus and added ₹ 30,21,580/- to the total income of the assessee. 2. The Ld. CIT (A) has erred in disregarding the documentary evidence filed by the assessee such as confirmation from the loan parties along with the necessary documents. 3. He failed to appreciate and ought to held that: a. The basic requirements for proving genuineness of the transaction are fulfilled by the assessee through the documents submitted by the loan parties which is enough to prove that the identity of the loan party and genuineness and creditworthiness of the loan parties. b. The said transaction of loan has been made from through proper banking channel via cross account payee cheques w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - less: interest on loan of ₹ 15 lakh required to be deleted. GROUND NO. 5 2. The Ld. CIT (A)erred in confirming the addition of ₹ 36,000/- rent of premises at cuttack respectively in view of section 69C of the Income Tax Act, 1961. The assessee submits that: i. the said rent of ₹ 36,000/- paid by assessee's brother Mr. Pradeep C lain and same has been shown as withdrawal in capital account of your appellant's brother Mr. Pradeep C lain. ii. No addition for the same can be made in the hands of the assessee while completing the Assessment for the A.Y. 2008-09. iii. The said amount was also not reimbursed by the assessee to his brother. iv. Further the said amount has not claimed by the assessee as expenditure in his Profit Loss account. v. hence, Addition cannot be made in the hands of the assessee. vi. Further the appellant has explained the source of expenditure. hence the addition u/s 69C is bad in law. vii. on the facts and in circumstances of the case, the said disallowance were unjustified and unwarranted. viii. Hence, the said addition of ₹ 36,000/- needs to be deleted. G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the decision of the Hon'ble Supreme Court in the case of National Thermal Power Co. Ltd. vs. CIT reported in 229 ITR 383, we would request the Hon'ble ITAT to admit the additional ground of appeal. 2. Brief facts of the case are that assessee filed return of income assessment year 2008-09 on 26.03.2009 declaring total income of ₹ 8,35,940/-. As a search action u/s. 132 was carried out on the assessee on 15.05.2007 during the such a cash of ₹ 61,00,000/- and jewellery of ₹ 18,15,390/- was found and ceased from the assessee s employee Shri Kahna Ram and Pradeep C Jain. Subsequent to the search action the assessment for six previous assessment years were completed by Dy.CIT Circle (15) Mumbai, vide order dated 23.12.2009 u/s. 143(3) r.w.s. 153A. The assessment in that year under consideration was completed on 31.12.2010. The assessing officer in while passing order in column no. 11 of ITNS 65 ( format of assessment order) recorded section 143(3) r.w.s 153A of the Income Tax . However, at the concluded para of the assessment order the assessing officer recorded assessed accordingly u/s. 143(3) of the Income Tax Act . 3. The assessing officer while ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CIT [2013] 37 taxman.com 167( Madras), Punjab and Haryana High Court in CIT Vs Norton Motors [2015] 146 TAXMAN 701 (P H) and decision of Tribunal in DLS properties (P ) Ltd Vs DCIT [2013] 33 taxman.com 420(Delhi). On the other hand Ld. DR for the revenue strongly opposes the application for raising additional ground of appeal. It was argued that and para 11 of ITNS 65(formant of assessment order), there is a merely a typographical error which may occurred while passing order. The assessing officer correctly recorded provision of section at the concluded para of assessment order. The order is neither invalid nor requires any correction. It was further argued that admittedly no notice u/s. 153A for the assessment year under consideration was issued by assessing officer. In fact, the assessment was passed u/s. 143(3). The search was conducted on 15.05.2007. The assessee filed return of income for relevant assessment year later on 26.03.2009. The assessing officer admittedly not issue notice u/s. 153A to assessee requiring him to furnish return of income. Thus, the assessee cannot take the plea that assessment order was passed u/s. 153A r.w.s 143(3). Even otherwise a six assessment ye ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ounted money of the assessee. The assessee s 98.82% of purchase are from Raksha Bullion. All the cash and jewellery are shown in the books of account. The assessee has provided all the details of the cash and the jewellery along with confirmation. The cash and jewellery cannot be treated as unexplained or concealed income of the assessee. The AO passed the assessment order without giving sufficient opportunity. It was argued that pursuant to the search action, the assessment order for AYs 2004-05, 2005-06, 2006-07 2007-08 was passed under section 153A r.w.s. 143(3). The assessee filed appeal in all quantum assessment before the Tribunal and the matter was restored to the file of AO vide order dated 27.04.2016 in ITA No. 7190, 6989, 6990 7191/Mum/2010. The relief prayed in the ground no.1 2 of the appeal are related to the cash and gold jewellery was seized in the search action on 15.05.2007. The AO while passing assessment order has not given sufficient opportunity to explain and substantiate the claim of assessee and these grounds of appeal may also be restored to the file of AO with the direction to allow the assessee to explain about the seizure of cash and jewellery. On t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted the said amount as unexplained loan and added to the income of the assessee u/s. 68 of the Act. Here also the matter is the same where the Assessing Officer raised the question on identity, capacity and genuineness of the transaction. The Assessing Officer has also recorded the reason that the lenders were not produced before him. However, the assessee has proved the identity of the lenders by producing the sufficient documents on record which has also been produced before us in the paper book. What has been produced by the assessee on record is hereby mentioned below:- Sr. No Name of the lender Documents of the lender 1 Chaganlal D. Jain 1. Copy of the Balance Sheet, Income Expenditure a/c.and Capital A/c.forA.Y.07-08. 2. Computation of Income for A.Y.07- 08. 3. Income Tax Acknowledgement for A.Y.07-08. 4. Pan card Xerox 5. Ration Card Xerox 6. Xerox copy of the bank passbook of the lender duly reflecting the loan given to the appellant. 7. Confirmation letter for Loan given. 8. Copy of letter dated:11/11/2008 written by the lender to the AO in reply to the not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AO in reply to the notice u/s. 133(6) issued to them confirming the transaction with your appellant. 9. Copy of the Bank Statement of the Lender (Saraswat Bank) and that of the appellant (ICICI Bank) duly reflecting a further lending of a amount of ₹ 80,000/- on 21.11.2006 by the lender to the appellant. 5 Neetu Jain 1. Copy of the Balance Sheet, Income Expenditure a/c.and Capital A/c.forA.Y.07-08. 2. Computation of Income for A.Y.07- 08. 3. Income Tax Acknowledgement for A.Y.07-08. 4. Pan card Xerox 5. Ration Card Xerox 6. Xerox copy of the bank passbook of the lender duly reflecting the loan given to the appellant. 7. Confirmation letter for Loan given. 8. Copy of letter dated:11/11/2008 written by the lender to the AO in reply to the notice u/s. 133(6) issued to them confirming the transaction with your appellant. 9. Copy of the Bank Statement of the Lender (Saraswat Bank) and that of the appellant (ICICI Bank) duly reflecting a further lending of an amount of ₹ 2.3 lacs on 15.11.2006 by the lender to the appellant. 6 Narpatraj D. Sanghvi 1. Copy o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve also lend ₹ 2.00 lacs which was duly repaid on 17.01.2007. 9 Ritesh K. Jain 1. Copy of the Balance Sheet, Income Expenditure a/c.and Capital A/c.forA.Y.07-08. 2. Computation of Income for A.Y.07- 08. 3. Income Tax Acknowledgement for A.Y.07-08. 4. Pan card Xerox 5. Ration Card Xerox 6. Xerox copy of the bank passbook of the lender duly reflecting the loan given to the appellant. 7. Confirmation letter for Loan given. 8. Copy of letter dated:11/11/2008 written by the lender to the AO in reply to the notice u/s. 133(6) issued to them confirming the transaction with your appellant. 9. Copy of the Bank Statement of the Lender (Saraswat Bank) and that of the appellant (ICICI Bank) duly reflecting a further lending of a amount of ₹ 40,000 on 10.01.2007 and ₹ 40,000 on 12.01.2007 by the lender to the appellant. The learned CIT(A) did not consider the claim of the assessee on the ground of that the assessee failed to produced the above mentioned 9 creditors and the documents which have been produced by the assessee were also not been considered on the presumption that the assessee was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that similar adhoc disallowance was raised against the assessee for AY 2007-08 and the Tribunal has remanded the matter to the file of AO in its order dated 27.04.2016. The ld. DR for the Revenue argued that he has no objection, if this ground of appeal is also restored back to the file of AO for considering afresh. 16. We have considered the submission of both the parties and have seen the order of Tribunal for AY 2007-08. The Tribunal passed the following order: ISSUE NO. 6:- 26. According to issue no.6 the assessee has challenged the addition to the tune of ₹ 60,000/- on account of unexplained expenses like electricity, salaries and travelling expenses of both sides (Mumbai and Cuttack) for the A.Y. 2007- 08. The contention of the assessee is that office of the assessee was not in operation in the A.Y. 2007-08 therefore there is no issue of expenditure. On appraisal of order passed by the Assessing Officer as well as learned CIT(A) on record, the expenses assessed by the Assessing Officer is on account of electricity, salary and travelling etc. The electricity bills, salary and expenditure of travelling is a matter of record which can be confirmed by going th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authorities below. It was argued that assessment order was made within two year from the end of Assessment Year. The AO passed the order within period of limitation as prescribed under section 153 of the Act. The ground of appeal raised by assessee is misconceived. It was argued that as per the provisions of section 153, the AO is required to make the order within prescribed period. Section 153 nowhere speaks about service of assessment order within the prescribed period of limitation provided for passing the assessment order. The various decision relied by ld. AR of the assessee are not applicable. The decision relied by ld. AR of the assessee relates to period service of notice under section 148, which has no relevance with the ground of appeal raised herein. Section 147 relates to notice of re-opening for which service of notice within prescribed period of limitation provided therein, which is mandatory. 20. We have considered the rival submissions of the parties and have gone through the order of authorities below. We have noted that assessment order is passed on 31.12.2010. The assessment order is passed within prescribed period of limitation as provided under section 153(1 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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